Yale Journal of Health Policy, Law, and Ethics

Current Issue: Volume 21, Issue 1

The Regulatory Shifting Baseline Syndrome: Vaccines, Generational Amnesia, and the Shifting Perception of Risk in Public Law Regimes

Robin Kundis Craig

Vaccination mandates have been controversial since governments first imposed them. Nevertheless, the intense politicization surrounding the COVID- 19 pandemic obscures a more pervasive problem for U.S. public health laws and vaccine-preventable diseases. Until the late twentieth century, the risk of various dread diseases was sufficiently high for most people that they embraced new vaccines. The intentional result of federal and state vaccination policies was that fewer people got these diseases. The perverse result was that perceptions of disease risk shifted, making the vaccines themselves seem like the far riskier option to many people, generating pressure to eliminate or mitigate vaccination mandates. Perhaps most importantly, in the early twenty-first century, state legislatures enacted exemptions from school vaccination requirements, setting the stage for measles resurgences in 2015 and 2019.

Focusing primarily on measles vaccination, this Article argues that, while not the only factor, a regulatory shifting baseline syndrome fueled the pre- COVID-19 resistance to vaccination. In 1995, Dr. Daniel Pauly described the “shifting baseline syndrome” and its problems for fisheries management. Pauly posited that each generation forgets what the ocean and its fisheries used to contain, leading successive generations to accept the current impoverished state of marine fisheries as normal. This generational amnesia makes opaque what the goals of fisheries regulation should, or even could, be.

This Article brings the shifting baseline concept into public law, identifying for the first time a regulatory shifting baseline syndrome that can undermine the law’s ability to protect society. This syndrome arises when a public legal regime, like a school vaccination mandate, so successfully eliminates a societal problem, like dread diseases, that citizens, politicians, and lawmakers forget that the regime is, in fact, still working to keep that problem at bay. This generational amnesia can lead to changes in law and policy that allow the prior problem to re-emerge in society, as occurred with measles outbreaks. While COVID-19 vaccination mandates are almost uniquely politicized and too new to reflect this syndrome, decisions in the COVID-19 context may nevertheless give the regulatory shifting baseline syndrome more room to operate, potentially threatening public health gains made with respect to other vaccine-preventable diseases in the United States.

Advancing Harm Reduction Services in the United States: The Untapped Role of the Americans with Disabilities Act

Abigail Fletes, Maria Katherine Delos Reyes, John C Messinger, Valarie Blake & Leo Beletsky

Now in its third decade, the overdose crisis continues to worsen. Harm reduction strategies, such as syringe service programs (SSPs), are proven, cost- effective responses to this ongoing public health emergency. Despite extensive research demonstrating that the health and social benefits of harm reduction services far outweigh alleged negative externalities, the number and scope of these programs continue to be severely limited. Restrictive zoning and other discriminatory legal measures figure among key barriers to harm reduction service access. The Americans with Disabilities Act (ADA) and Rehabilitation Act (RA) have recently gained prominence in challenging discrimination against people who seek substance use treatment. But the instrumental potential of these landmark statutes to advance access to harm reduction services has been largely unrealized. By drawing lessons from the emerging success in using Title II of the ADA and Section 504 of the RA in the realm of substance use treatment, we call for urgent deployment of these statutes to expand access to harm reduction services in the United States. In the context of a spiraling crisis, these legal tools offer enormous promise in safeguarding the rights—and lives—of vulnerable people.

Reconceptualizing the International Health Regulations in the Wake of COVID-19: An Analysis of Formal Dispute Settlement Mechanisms and Global Health Diplomacy

Celestina Radogno

The COVID-19 pandemic brought renewed attention to the International Health Regulations, a multilateral treaty to “prevent, protect against, control and provide a public health response to the international spread of disease.” But a historical review of the treaty reveals the true focus of the treaty has always been about avoiding economic restrictions during pandemics. This resulted in a State practice of widespread non-compliance with the treaty. Some have suggested the United States invoke the International Health Regulations’ legal dispute resolution mechanism against China in response to China’s role in the spread of COVID-19. Yet, since its inception, this mechanism has never been pursued. Why? This Article answers this question by walking through what an international lawsuit or arbitration by the United States against China would actually look like—and how it would fail. Likely appreciating this reality, State practice has made the International Health Regulations function more like a soft power tool than an instrument of hard law. This is not necessarily a bad thing, as diplomacy has upsides that formal legal settings do not. However, unchecked diplomatic tactics have increased geopolitical tensions between the United States and China at the expense of countries in the Global South’s ability to recover from the pandemic. In the conclusion of this Article, I suggest some solutions outside traditional treaty law that can help reach the ultimate goal of the International Health Regulations: an efficient global pandemic response system.

Data Privacy in the Time of Plague

Cason Schmit, Brian N. Larson & Hye-Chung Kum

Data privacy is a life-or-death matter for public health. Beginning in late fall 2019, two series of events unfolded, one everyone talked about and one hardly anyone noticed: The greatest world-health crisis in at least 100 years, the COVID-19 pandemic; and the development of the Personal Data Protection Act Committee by the Uniform Law Commissioners (ULC) in the United States. By July 2021, each of these stories had reached a turning point. In the developed, Western world, most people who wanted to receive the vaccine against COVID- 19 could do so. Meanwhile, the ULC adopted the Uniform Personal Data Protection Act (UPDPA) at its annual meeting, paving the way for state legislatures to adopt it beginning in 2022. It has so far been introduced in three jurisdictions.

These stories intersect in public health. Public health researchers struggled with COVID-19 in the United States because they lacked information about individuals who were exposed, among other matters. Understanding other public health threats (e.g., obesity, opioid abuse, racism) also requires linking diverse data on contributing social, environmental, and economic factors. The UPDPA removes some barriers to public health practice and research resulting from the lack of comprehensive federal privacy laws. Its full potential, however, can be achieved only with involvement of public health researchers and professionals. This article analyzes the UPDPA and other comprehensive state privacy statutes, noting the ways that they could promote—and hinder—public health. It concludes with recommendations for public health researchers and professionals to get involved in upcoming legislative debates on data privacy. Lives will depend on the outcomes.